United States v. Duane Watts , 30 A.L.R. Fed. 735 ( 1975 )

BARRETT, Circuit Judge.

Duane Watts (Watts) appeals from the Trial Court’s judgment finding him guilty of involuntary manslaughter and adjudging him to be a Juvenile Delinquent under the provisions of the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5037.

Watts, an Indian and a minor aged 17 at the time of the alleged offense, was initially charged by complaint with the offense of murder arising from the stabbing death of his brother, Calvert Watts. He was thereafter indicted for voluntary manslaughter. Subsequently, upon failure of the United States Department of Justice to consent to Watts’ being charged as an adult, and with the consent of Watts and his counsel, the prior indictment was dismissed and an Information, charging Juvenile Delinquency-Manslaughter, was filed. At trial Watts attempted, unsuccessfully, to establish that he had acted in self defense in stabbing his brother during an altercation.

On this appeal Watts contends: (1) that his right to due process was violated by reason of the failure of adequate notice being provided to his parents; and (2) that the Trial Court erred in allowing the prosecution to make use of grand jury proceedings against him.

I.

Watts’ chief allegation, i. e., that he was denied due process because his parents were not given notice of the charges against him, nor were they advised of his right to counsel, etc., is premised solely upon the Supreme Court’s landmark decision in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). While Watts baldly claims that the federal courts have consistently followed the Supreme Court’s mandate in this regard, he has cited no cases squarely holding on this point, nor have we, through our own research, uncovered any such authority. The question of whether the failure of notice to a juvenile’s parents, standing alone, constitutes sufficient grounds for the reversal of a determination of juvenile delinquency under the Federal Act, we find to be of first impression before this court.

In establishing standards for the type of notice which would comport with due process requirements for juvenile delinquency proceedings, the Court in Gault held:

Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must “set forth the alleged misconduct with particularity.” . . . even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. Due process of law requires notice of the sort we have described— that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet. (Emphasis supplied). 387 U.S. at 33-34, 87 S.Ct. at 1446.

While Gault, supra, dealt specifically with the constitutionality of a state scheme for juvenile proceedings, the rights enumerated by that decision are based upon protections afforded by the United States Constitution and, consequently, we view them to be equally applicable to federal proceedings dealing with juvenile offenders under the Federal Juvenile Delinquency Act.¹

Although the express language in Gault requiring that notice be given to both the juvenile and his parents is unequivocal, we are not convinced that the failure of such notice to the parents must lead in all cases to the automatic reversal of the juvenile’s adjudication as a delinquent.

Our review of the decision in Gault and our search of other authorities does not convince us that there exists a separate and independent due process right to notice of delinquency proceedings belonging to the parents of the juvenile defendant, Watts.² However,, because the parents are not parties to the present action we need not now decide whether such a right exists, and if so whether it has been violated. Further, we do not and need not decide what remedy may be available or appropriate.

Instead, our concern on this appeal is solely with whether a violation of the standard established in Gault requiring that notice be given to a juvenile’s parents constitutes such a deprivation of the juvenile’s right to due process as to, per se, require a reversal of the determination of his delinquency.

Preliminarily, we note the following language from the Supreme Court’s recent decision in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), which concerned the type of due process notice which must be given students prior to their suspension:

. the interpretation and application of the Due Process Clause are intensely practical matters and “the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895 [81 S.Ct. 1743, 6 L.Ed.2d 1230] (1961). (Emphasis added).

419 U.S. at 578, 95 S.Ct. at 738.

Similarly, we find applicable the Court’s statement in Gault that the due process standards established therein are to be “intelligently and not ruthlessly administered.” 387 U.S. at 21, 87 S.Ct. 1428.

In Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), the Supreme Court recognized that certain procedural safeguards (in that case the Miranda warnings) were not themselves rights protected by the Constitution but were, instead, prophylactic measures laid down to insure that basic rights were not violated. This being so, where only the prophylactic safeguard has been violated but the basic right has not, reversal is not necessarily required.

In Holloway v. Wain wright, supra, the Court stated that the purpose underlying statutes requiring notice to parents is to “furnish a safeguard to minors accused of crimes by requiring that the opportunity be made available for consultation and advice with the individuals, who, society must assume, are those most vitally concerned with the minor’s best interests.” 451 F.2d at 151. The basic right protected by such safeguards is that of the child to be made aware of the charges against him and to be assured a reasonable opportunity to prepare his defense. Kemplen v. State of Maryland, 428 F.2d 169 (4th Cir. 1970). In this regard, the parents’ function would seem to be similar to that of legal counsel.

Watts has made no contention that he was not made fully aware of the charges against him or that he was in any way prejudiced in preparing his case due to the failure of notice being given to his parents. There is no allegation here that Watts was denied the opportunity to confront and cross-examine all adverse witnesses or to secure the presence of favorable witnesses or present evidence in his own defense. Unlike the factual situation in Gault, the record here reveals that Watts himself had adequate written notice of the precise charges against him well in advance of the hearing and was at all material times represented by competent counsel.³ Furthermore, Watts’ mother and his stepfather were obviously available to assist him with his defense, as evidenced by the fact that they were present at trial and testified in his behalf.

We do not intend hereby to condone the Government’s failure to notify, or even attempt to notify, the juvenile’s parents. Such notification may often be the only practical method of insuring that a juvenile is accorded fundamental due process rights mandated by In Re Gault. Where, as here, however, it is clear that the juvenile has not, in fact, been denied due process (even though there has been a technical violation of a prophylactic safeguard established to protect that right), we see no need for a per se rule requiring reversal. Cf., In Re State in Interest of Harrell, 254 La. 963, 229 So.2d 63 (1969).

The law cannot realistically require that officers investigating serious crimes make no errors whatsoever, and before such error will be penalized it must be determined that such sanction serves a valid and useful purpose. Michigan v. Tucker, supra. There is no allegation here that the investigating officers’ failure to notify Watts’ parents was willful.⁴ Further, there has been no showing made that the Government’s case was in any way enhanced by its failure to supply such notice. A “deterrence” argument is not, therefore, applicable here. Nor are we convinced that a reversal, under the circumstances presented by this case, would in anywise enhance the “fact finding process.” See, MeKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

Finally, we agree with the conclusion of the District Court in Walker v. State of Florida, 328 F.Supp. 620 (S.D.Fla. 1971), aff’d. 466 F.2d 485 (5th Cir. 1972):

Gault established that in “loss of liberty proceedings” the juvenile, with respect to certain constitutional rights, is to be treated as an adult. No more was required, no less was offered.

328 F.Supp. at 624.

Under the total circumstances of this ease, we agree with the conclusion of the trial court and hold that Watts was not denied the fundamental “fair treatment” mandated by In Re Gault.

II.

Watts next asserts error in that the trial court permitted the prosecutor to use grand jury proceedings against him. The basis of this allegation rests upon Watts’ unsupported contention that the Government, in attempting to impeach two of its witnesses, may have relied upon transcripts of their prior testimony before the grand jury. He asserts that such use amounted to a subversion of criminal procedure and requires reversal, citing United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958).

The Government contends that it did not use grand jury transcripts to impeach these witnesses, but rather relied upon statements made by these witnesses to the investigating authorities on the night of the incident. Suffice it to say that if such statements were made to- the investigating officers (which Watts does not dispute), they could have been properly used to impeach these witnesses’ testimony. In light of this, we see no possibility of prejudicial error to Watts even if these same, or similar, statements were also transcribed during the grand jury proceedings and hence thereby were independently available to the Government from another, perhaps tainted, source. Rule 52(a) Fed.R. Crim.P., 18 U.S.C.; Jennings v. United States, 364 F.2d 513 (10th Cir. 1966), cert. denied 385 U.S. 1030, 87 S.Ct. 760, 17 L.Ed.2d 677 (1967); Gay v. United States, 322 F.2d 208 (10th Cir. 1963).

We affirm.

1 . While the U.S. Attorney correctly pointed out in his brief that at the time of these proceedings the Federal Act did not require that notice be given to the juvenile’s parents, we deem it significant to note that such a requirement has been included in a recent amendment to that Act. Section 503 of the Juvenile Justice and Delinquency Prevention Act of 1974 (P.L. 93-415; 88 Stat. 1109) amended Section 5033 of Title 18 U.S.C. to read:

Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer shall immediately advise such juvenile of his legal rights and shall immediately notify the Attorney General and the juvenile's parents, . of such custody. The arresting officer shaii also notify the patents, ... of the rights of the juvenile and of the nature of the alleged offense. (Emphasis added).

We further note the implicit recognition by the Congress that from the time of the decision in In Re Gault, the Federal Juvenile Delinquency Act has been deficient in providing for those safeguards which the court there mandated:

Finally, it is necessary to amend the Federal Juvenile Delinquency Act to guarantee certain basic procedural and constitutional protections to juveniles under Federal jurisdiction. The Committee believes that the Act should provide for the unique characteristics of a juvenile proceeding and the constitutional safeguards fundamental to our system of justice. Six years after the Supreme Court in In Re Gault, decried the lack of certain due process protections in juvenile proceedings, the Federal Juvenile Delinquency Act has not been changed to reñect those due process rights. (Emphasis added). Senate Report No. 93-1011; 1974 U.S.Code Cong. and Admin.News, p. 5312 (October 15, 1974).

2 . In this regard, we note that while parents must be given notice in proceedings wherein custody is at^ stake, Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), and while the Court in Gault spoke in terms of the “interest” of parents in retaining custody of the juvenile as partial justification for their being given notice, we also take notice of certain distinctions between this case and those in which the right to notice has been clearly afforded parents. For example, unlike custody proceedings between divorced parents, or those in which the state is attempting to take custody from parents on charges of nonsupport, etc., here there is no direct attack upon the parents’ right to custody. Rather, any effect upon custody is purely incidental to the main function of the proceedings, i. e., to determine delinquency. Secondly, any deprivation suffered by parents following a delinquency proceeding will not necessarily be in the nature of a permanent deprivation of all parental rights, as is relied upon as justification for notice in Armstrong, supra. We further observe that the due process standards set forth in Gault (including the right to notice) were specifically held to apply only to that part of'the juvenile proceedings in which delinquency is determined and not to that stage of the proceedings in which the disposition of the delinquent child is at issue, Gault, supra, 387 U.S. at 27, 87 S.Ct. 1428. It is only at this latter stage that the matter of custody is actually determined. It would therefore seem that any right to notice belonging to the parents based upon the contention that custody is at stake would be applicable, if at all, only to this latter stage of the proceedings, and hence, Gault would not seem to be a reliable authority for a claim of such right.

Finally, we recognize that there are several cases holding that the Federal Constitution does not require that a minor’s parents be notified prior to the commencement of criminal proceedings against him (even though, presumably, “custody” of the child is as much at stake in those proceedings as it is in delinquency proceedings). See, Adams v. Wainwright, 445 F.2d 832 (5th Cir. 1971), cert. denied 404 U.S. 860, 92 S.Ct. 160, 30 L.Ed.2d 103 (1971); Holloway v. Wainwright, 451 F.2d 149 (5th Cir. 1971).

3 . We are not unmindful of the fact that Watts’ own counsel presumably had it within his own power to notify the juvenile’s parents.had he felt strongly that his client would have been materially benefited by their being so informed. His failure to do so may have been a trial tactic to preserve technical error.

4 . Indeed, their reliance upon the Federal Act’s lack of such a requirement seems reasonable in light of the fact that Congress had not changed the Act to include such a requirement until some 7 years after the decision in In Re Gault.